Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Thursday, February 18, 2010

Business and Human Rights Part XVII--Implementation: Prioritizing

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions.

For 2010, this site introduces a new series--Business and Human Rights. The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations PressRelease, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation. My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation framework.

Part XVII: Human Rights Due Diligence--Implementation: Prioritizing.

One of the oldest problems bedeviling states has centered on implementation/enforcement. While the process of law formulation and enactment has always presented its own difficulties--even within tyrannies--the ability to substantially enforce rules has always eludes states. States have come closest to the ideal of perfect enforcement/implementation when it has had the smallest role to play in that enterprise--that is, when the objects of enforcement become their most diligent prosecutors. On the other hand, when positive law meets strong popular disapproval, even the most technologically advanced regime will encounter significant difficulties with enforcement. The problem of drug control has proven nearly impossible to do more than manage in virtually every state. On the other hand, the American Republic (in contrast. for example to states like Italy) for having a high level of self enforcement of its tax paying obligations. No state has the resources to perfectly implement even the most ll received political norm. To manage imperfect enforcement or even implementation of legislative or other legal commands, states have developed a number of techniques. Within the criminal law, the concept of prosecutorial discretion has played a large role in managing the limited resources of a prosecutor's office. But management tools are as capable of generating abuse as it is capable of successfully managing limited resources. See, Daniel D. Ntanda Nsereko, Prosecutorial Discretion Before National and International Tribunals.

A similar issue is said to attach to the obligations of corporations to respect human rights.

Companies that have global operations, large physical footprints, a diverse range of businesses, or complex supply chains could affect the entire spectrum of internationally recognized human rights.

While the corporate responsibility to respect requires respecting all rights, it is unlikely that all issues can be addressed simultaneously. Consequently, guidance may be needed on how to prioritize potential and actual impacts on human rights.

United Nations Special Representative of the Secretary-General on Business & Human Rights, Implementation, Prioritizing. The SRSG has asked, "What guidance can be given on how to prioritize potential and actual company impacts on human rights?" Id.

It might be useful, in thinking through issues of priority, to consider a set of guiding principles and actions--(1) consistency across operations; (2) development and circulation of a corporate Human Rights Priority Policy; (3) stakeholder involvement in formulation of any prioitization policy; (4) minimization of administrative complexity; (5) articulation of principled rationale for choices among enforcement alternatives; (6) development of procedures for and principles through which deviation from priority policy is possible; and (7) balance among the kinds of rights enforced on a qualitative basis to avoid commodification of rights prioritization.

(1) Consistency across operations: essential to any priority plan is consistency. Where a corporation is engaged in global operations it must ensure that its approach to human rights is consistent across its operations. That may be more difficult than it sounds. For example, enforcing policies that protect the rights of women across corporate operations may pose difficulties wher operations exist in Bangladesh and Denmark. However, selective prioritization would likely be demoralizing and suggest a cynical approach to human rights naturalization within corporate culture that would be difficult to correct.

(2) Development and circulation of a corporate Human Rights Priority Policy: The SRSG has emphasized transparency. A Human Rights Peiority Policy that sets forth principles through whcih such priorities are established and periodically re-examined provides a public exprtession of commitment that may serve both internal and external corporate constituencies.

(3) Stakeholder involvement in formulation of any prioitization policy: Involvement of outside stakeholders in the development of corporate human rights priority policies is as important as the participation of corporate inside stakeholders. There is a well established pattern of stakeholder involvement in the development of corporate policies for supply chain policies.. There is little reason that extension of that practice generally to the formulation of principles of human rights prioritization would be detrimental to either stakeholder or corporate interests.

(4) Minimization of administrative complexity. Priority policies can be used to make human rights enforcement easier and more efficient. It can also be used to hamper the corporate responsibility to respect. It is well known, for example, that one way to effectively deny welfare benefits to the poor is to increase the complexity of the rules required for application for benefits and the remoteness of the institutions charged with the administraiton of programs. A prioritization program can as easily be used to subvert the corporate responsibility to respect as it can be used to make that responsibility more effective.

(5) Articulation of principled rationale for choices among enforcement alternatives. A company ought to be especially sensitive to issues of legitimacy when it engages in choices among human rights. One important method for legitimating choices is to articulate principles by which such priority choices are made.

(6) Development of procedures for and principles through which deviation from priority policy is possible: The great failure of rules and principles are also their greatest strength--their specificity. But sometimes exceptions are necessary to ensure that justice principles, blindly applied, do not produce injustice. Any priority policy ought to have procedures in place to permit inside and outside stakeholders the opportunity to petition for deviation from the application of those principles.

(7) Balance among the kinds of rights enforced: There is always a danger that prioritization will produce a hierarchy of rights, and that this hierarchy advantages a company or its stakeholders to the detriment of populations to be served. Prioritization ought not to serve as a bass for arranging human rights in orders of importance. For that reason, it might be useful to avoid prioritization by reference to rights, and other priority factors ought to be sought.

There are some useful resources for thinking through issues of prioritizing. One of the more well developed was produced by the Business Leader's Initiative on Human Rights, A Guide for Integrating Human Rights into Business Management. "The Business Leaders Initiative on Human Rights (BLIHR) is a business-led program that is developing practical tools and methodologies for applying hu- man rights principles and standards across a range of business sectors, issues, and geographical locations." Id., at 3. The BLIHR uses conventional business management techniques to develop tools for prioritizing human rights in business management. The Guide itself is "based on a conventional management system. It follows the Global Compact Performance Model, which is a map for responsible corporate citizenship." Id., at 5. It is meant to turn human rights "risk into opportunity is a key component of a strategic approach to human rights in business. " Id., at 13. For this purpose the BLIHR has developed the Human Rights Matrix.

The Human Rights Matrix designed by the BLIHR companies can be used to allow a business to map what it sees as its ‘essential’, ‘expected,’ and ‘desirable’ priorities against a broad spectrum of hu- man rights categories. It allows risks and opportunities to be shown together and helps to identify the human rights content of a company’s ‘sphere of influence.’
• Essential – is the action that must be taken by the company to follow relevant legal standards, eg international human rights law, national laws, and regulations, including in situations where a government is unwilling or unable to fulfill its obligations.
• Expected – is the action which should be taken by the company to meet the expectations of, and accept its shared responsibilities to, relevant stakeholders. What is expected may vary according to your business sector.
• Desirable – is the action through which the business could demonstrate real leadership. This can take a number of forms depending on the circumstances, but could include partnerships with other stakeholders,
philanthropic and charitable donations or the donation of technical expertise to help the most disadvantaged.

Id. The Matrix itself is a comprehensive approach to assessment that is worth studying. See id., at 14-15.

But managing priorities within a business begs a fundamental issue--the development of a hierarchy of human rights values. During the 1980s, for example, it was fashionable to suggest that social and economic rights, especially in developing states, took precedence over political rights. Rhoda Howard, The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil and Political Rights? Evidence from Sub-Saharan Africa, 5 HUM. RTS. Q. 467, 469 (1983); but see, e.g., See, e.g., Indivisibility and Interdependence of Economic, Social, Cultural, Civil, and Political Rights, G.A. Res. 44/130, U.N. GAOR, 44th Sess., Supp. No. 49, at 209, U.N. Doc. A/44/49 (1990) (human rights indivisible). Companies that prioritize human rights may also effectively be creating hierarchies of rights. Where companies harmonize the management of human rights priorities within industrial sectors or in particular parts of thew world, then the possibility of creating a customary framework for human rights hierarchies is made stronger. But that is hardly the objective of the SRSG under the Second Pillar. It follows that any efforts to prioritize ought to avoid producing qualitative hierarchies of human rights.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.